## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 23 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DOMINGO ARAGON; EVA ARAGON; LEWIS AUDET; ANNE AUDET; VIRGINIA BARTLETT; BOB C. BECK; INEZ BECK; BILLY BROWN; CHRISTA BROWN; CLEMENTE CABRIOLES; MANUEL CERECERES; ROSEMARY DEAN; EVA GOMEZ; ETHEL LOGAN; CAREY LOGAN; BENITO MARTINEZ; EPIFANIA MARTINEZ; M.C. MCDONALD; SHIRLEY MCDONALD; TOM MAGGART, JR.; STEVE OLDFIELD; TAMMY OLDFIELD; G.R. PARTIN; MOLLY PARTIN; RICHARD PRESCOTT; ROY PRESCOTT; FRANK RHYMES; RITA RHYMES; FERN ROWDEN; DARRYL SAMPLES; MARY SAMPLES; ROSALINDA SOSA; JOE TORRES; DESTRY TUCKER; DANA TUCKER, Plaintiffs-Appellants,

v. UNITED STATES OF AMERICA, Defendant-Appellee. No. 97-2047

Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-94-592-JP)
Richard A. Blenden (Daniel R. Dolan and Pete V. Dom enici, Jr. of Dolan &1 The Plaintiffs’ action also included civil rights claims for “deprivation of

property, inverse condemnation, and appropriation w ithout due process and without compensation.” The parties do not address these claims on appeal.

-2- Domenici, Albuquerque, New Mexico, with him on the brief) of Blenden Law Firm, Carlsbad, New Mexico, for Plaintiff-Appellant s. S. Michael Scadron (Frank W. Hunger, Assistant Atto rney General; John J. Kelly, United States Attorney; John Zavitz, Assistant Unit ed States Attorney; and J. Patrick Glynn, Joann J. Bordeaux, David S. Fishback , and J. Charles Kruse of the Department of Justice with him on the brief) of the Department of Justice, Washington, D.C., for Defendant-Appellee.

Before TACHA, BRORBY , and BRISCOE , Circuit Judges.

BRORBY , Circuit Judge.

The plaintiffs-appellants, Mr. Domingo Aragon and o ther landowners residing southeast of the former Walker Air Force B ase (“Plaintiffs”), filed a tort action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671- 2680, alleging negligence and negligence per se rel ating to the contamination of their residential water wells. 1 The Government answered the complaint and filed a motion to dismiss for lack of subject matter juri sdiction under Fed. R. Civ. P. 12(b)(1), claiming the discretionary function excep tion to the Tort Claims Act, 28 U.S.C. § 2680(a), barred the action. After a four- day bench trial focusing on the discretionary function exception, the district court dismissed the case for lack of2This bench trial was held pursuant to the distric t court’s bifurcation and

scheduling order dated October 6, 1995. The distri ct court bifurcated damage issues from this trial, which focused solely on the discretionary function exception and related liability issues.

-3- subject matter jurisdiction. 2 The Plaintiffs appeal the district court's dismis sal. We exercise jurisdiction pursuant to 28 U.S.C. § 12 91 and affirm.

I. Background In 1942, the military established an airbase on the outskirts of Roswell, New Mexico, to train Army Air Corps pilots for Worl d War II. In 1949, the base was redesignated Walker Air Force Base (the "Base") , and became a Strategic Air Command Post. The Base was used by the United Stat es Air Force during the Korean Conflict for flying and supporting reconnais sance missions. The Base also was prepared to assist Strategic Air Command w ar planes bombard strategic targets in the event of war. In the 1960s, the Bas e’s mission expanded to support United States military efforts in Vietnam.

Throughout this time, the military washed aircraft and aircraft engines with trichloroethylene ("TCE"), on or near Base runways. TCE is a toxic organic solvent, known to be used by the military as a degr easing agent. At least every other day a squadron of fourteen aircraft were wash ed on “ready-alert” pads4Plaintiffs identified other possible sources of T CE contamination within

the Base. Our analysis, however, is unaffected by the precise number or location of TCE sources. -4- located near the runways. These planes were used f or special missions designed to gather information on how close aircraft could f ly over a nuclear detonation without being contaminated. The planes were washedimmediately after returning from their missions to remove radioactive debris an d dust. The resulting TCEcontaminated waste water flowed into ditches and un lined detention basins located near the Base’s east boundary. 4

In 1967, the government deactivated the Base, and i n 1968, deeded most of the site to the City of Roswell. In 1991, the New Mexico Environmental Department detected TCE in the Plaintiffs' wells lo cated near the Base’s east boundary. The Army Corp of Engineers subsequently identified the probable source of contamination as the Base site.

In August 1993, the Plaintiffs filed claims with th e Air Force for compensation, which were subsequently rejected. Th e Plaintiffs then filed this action against the United States under the Federal Tort Claims Act, requesting damages for personal injuries, emotional distress, diminution in property values, and other related compensation. The Plaintiffs cou ntered the Government’s-5-

motion to dismiss by claiming Air Force manuals, re gulations, and New Mexico state law imposed a mandatory, nondiscretionary duty on the Air force to consider the effects of waste water disposal on groundwater and to dispose of its waste water so as to avoid groundwater pollution. In add ition, the Plaintiffs claimed the decisions on how to dispose of TCE are not the type of policy decisions the discretionary function exception was designed to pr otect. The district court rejected the Plaintiff’s contentions and dismissed their complaint. The Plaintiffs appeal, relying on essentially the same arguments t hey presented to the district
court.

II. Analysis The Federal Tort Claims Act waives sovereign immuni ty for actions against the United States resulting from injuries caused bythe negligent acts of governmental employees while acting in the scope of their employment. 28 U.S.C. §1346(b)(1). The United States can be held liable “in the same manner and to the same extent as a private individual unde r like circumstances.” Id. § 2674. Excluded from the Tort Claims Act’s broad waiver of immunity are claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty” by a fede ral agency or a federal governmental employee. Id . § 2680(a). This exception “marks the boundary-6-

between Congress’ willingness to impose tort liabil ity upon the United States and its desire to protect certain governmental activiti es from exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) , 467 U.S. 797, 808 (1984). The exception applies even if the governmental employees were negligent. Allen v. United States , 816 F.2d 1417, 1421 (10th Cir. 1987), cert. denied, 484 U.S. 1004 (1988).

The discretionary function exception “‘poses a juri sdictional prerequisite to suit, which the plaintiff must ultimately meet as p art of his overall burden to establish subject matter jurisdiction.’” Miller v. United States , 710 F.2d 656, 662 (10th Cir.) (quoting Baird v. United States , 653 F.2d 437, 440 (10th Cir. 1981), cert. denied, 454 U.S. 1144 (1982)), cert. denied, 464 U.S. 939 (1983). We review de novo whether this exception applies to the undisputed f acts in this case. Duke v. Department of Agric. , 131 F.3d 1407, 1409 (10th Cir. 1997).

In determining whether the discretionary function e xception applies to the challenged conduct, we use the two-pronged analysis provided by the United States Supreme Court in Berkovitz v. United States , 486 U.S. 531, 536 (1988). Duke , 131 F.3d at 1409. Since the exception covers onl y those acts “involv[ing] an element of judgment or choice,” we must first de termine if "a federal statute,-7-

regulation, or policy specifically prescribes a cou rse of action for an employee to follow.” Berkovitz , 486 U.S. at 536. This Court requires the prescr ibed course of conduct be specific and mandatory. See, e.g., Daigle v. Shell Oil Co. , 972 F.2d 1527, 1540 (10th Cir. 1992) (ruling general health and safety policies underlying CERCLA response actions provided discretion because they were not couched in terms of specific and mandatory directives); Allen , 816 F.2d at 1421 (concluding the Atomic Energy Commission’s general statutory duty to consider public health and safety when conducting open air atomic bomb tes ts was broad and discretionary). If a federal statute, regulation o r policy imposes specific, mandatory directives, conduct pursuant to those dir ectives is not discretionary since “the employee has no rightful option but to a dhere to the directive.” Berkovitz , 486 U.S. at 536. However, if the employee’s cond uct involves “a matter of choice” or judgment, then the action is d iscretionary, and we proceed to the second prong of our analysis. Id.

Under the second prong of the Berkovitztest, we must determine whether the exercise of judgment or choice at issue “is of the kind that the discretionary function exception was designed to shield.” Id. “[O]nly governmental actions and decisions based on considerations of public pol icy” are protected by the exception. Id. at 537. This limitation is consistent with “Congr ess’ [desire] to5 The Plaintiffs urge this court to rely on Clark v. United States , 660 F.

Supp. 1164 (W.D. Wash. 1978), aff’d, 856 F.2d 1433 (9th Cir. 1988), to rule the Air Force was required by its manuals to consider the effect of ground water in disposing its industrial waste. However, we declin e for the principal reasons that Clark (1) is factually distinguishable and involved lega l provisions and Washington state law not applicable in the present case, and (2) having been decided prior to Berkovitz , the analysis inClark strays significantly from presently accepted discretionary function analysis. Clark simply has no precedential value in this circuit. -8- 'prevent judicial “second-guessing” of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.’” Id. (quoting Varig , 467 U.S. at 814).

A. Discretionary Conduct We now apply Berkovitzto the present facts. The Plaintiffs contend the Air Force violated specific, mandatory requirements to cooperate with state and local officials to prevent water pollution, and to dispos e of TCE in such a manner to avoid polluting groundwater, as set forth in Execut ive Order 10014, Air Force Manuals 85-14 (Maintenance and Operation of Sewage and Industrial Plants and Systems (1959)) and 88-11 (Sewage, Refuse and Indus trial Waste) (1956)), Air Force Regulation 91-9 (Utilities Operation and Serv ices: Sewage and Industrial Waste Works (1950, 1953, 1958, 1965)), and New Mexi co state law. 5 Accordingly, the Plaintiffs maintain the government 's conduct was not within the discretionary function exception. We review each d ocument in turn to determine-9-

whether, indeed, any of the documents prescribed a specific, mandatory course of conduct regarding the disposal of waste water from aircraft washdown operations at the Base.

Executive Order 10014 Executive Order 10014 directed heads of the departments, agencies, and independentestablishments of the executive branch ... to take such action as may be practicable , in cooperation with State and local authorities ... to insure the disposal of sewage, garbage, refuse, and other wast es accumulated in the course or as a result of Federal activities ... in such manner as will conform with programs formulated under State l aw.... Exec. Order No. 10014, 13 Fed. Reg. 6601 (1948) (emphasis added). Although the Plaintiffs concede Order 10014 gave discretion to the Air Force as to which method it chose to dispose of its waste water, the Plaintiffs suggest Order 10014 did not permit the Air Force to do nothing and to p ollute the groundwater. In other words, the Plaintiffs contend Order 10014 didnot permit the Air Force simply to run its TCE-contaminated waste water into an open ditch.

By its express language, Executive Order 10014 requ ired the Air Force to take action only as “practicable.” Exec. Order No. 10014, 13 Fed. Reg. 6601 (1948). “A]s may be practicable” is a prime exampl e of discretionary language, which gave federal agencies a choice or judgment on what action to take, if any

.-10-

It is clear the Order promoted a policy of cooperat ion with state and local water authorities; however, the Order alone contained no specific, mandatory directives for the Air Force to follow in disposing its waste water from aircraft washdown operations. See Daigle , 972 F.2d at 1540; Allen , 816 F.2d at 1421. Moreover, with respect to the Plaintiffs’ argument that Order10014 did not permit the Air Force to simply do nothing, the record fails to sup port the Plaintiffs’ suggestion the Air Force never considered the impact of its me thod for disposing the TCEcontaminated waste water on groundwater pollution. Thus, the Plaintiffs cannot rely on Order 10014 to establish jurisdiction underthe Federal Tort Claims Act.

Air Force Manual 85-14 The Plaintiffs next contend federal standards in ef fect when Order 10014 applied determined what methods of disposal were “p racticable,” and therefore prescribed standards for the Air Force to follow to avoid groundwater pollution. The Plaintiffs rely, in part, on Air Force Manual 8 5-14 (1959) to support their contention the Air Force had identified “practicabl e” methods to dispose of its toxic wastes, which could not be ignored pursuant t o Order 10014. They refer to § E1.02, which states “[t]he installations engineer , in accordance with AFR 91-9, will supervise the treatment and disposition of ind ustrial wastes, which will be accomplished in a manner meeting anti-pollution req uirements established by-11-

State control agencies.” AFM 85-14 § E1.02. They also refer to § E1.03b, which states the “[d]ischarge of [industrial waste] must be stringently controlled.” In addition, the Plaintiffs refer to § E1.04d, which s tates wastes produced in the “cleaning of aircraft ... pollute potable water.” Id. § E1.04d. Lastly, they refer to § E2.01a, which states "[o]pen carrier ditches and canals must not be used for the collection of industrial wastes involving fire or e xplosion hazards or odor nuisance.” Id. § E2.01a. The Plaintiffs suggest a “fair reading” of these provisions imposes a specific, mandatory duty on th e Air Force to handle TCE in a reasonable manner, which prohibits running it int o an unlined ditch and pit.

We first address the Manual generally, and then eva luate the particular sections the Plaintiffs cite. An agency manual, in contrast to a regulation, is not necessarily entitled to the force and effect of law

. See Schweiker v. Hansen , 450 U.S. 785, 789 (1981) (per curiam) (ruling a Social Security Claims Manual not binding on the government). This is particularly t rue if the agency did not intend the manual to be mandatory, but rather intended it as a guidance or advisory document. See Hamlet v. United States , 63 F.3d 1097, 1103-05 (D.C. Cir. 1995) (holding agency personnel manual not binding if, am ong other factors, the agency did not intend for it to be binding). Air Force Ma nual 85-14 specifically states it is “intended for guidance” and “[b]ecause of the va ried nature of industrial-12-

problems, principles rather than practices are emph asized.” AFM 85-14, § E1.01 (Purpose and Scope). This express qualification we ighs heavily against ruling the Manual prescribed mandatory directives for the Air Force to follow.

Furthermore, we find no specific, mandatory directi ves in the particular sections cited by the Plaintiffs. Consistent with the Manual’s purpose and scope, those sections provide Air Force personnel discreti on in their decisions on how to dispose of TCE. For example, under § E1.02, the in stallation engineer's supervision of industrial waste disposal is governe d by Air Force Regulation 91-9 (1953). AFM 85-14, § E1.02. Air Force Regulation 91-9 requires installation commanders to cooperate with civil authorities on s tate stream abatement programs to prevent water pollution and to comply w ith state water contamination standards. AFR 91-9, § 8 (1958). At the outset, w e question whether this regulation applied to the challenged conduct at all since it pertained to state stream abatement programs, not to isolated ditches and groundwater.

Nevertheless, we fail to find any support in the re cord that the installation commander did not cooperate with state officials. In addition, the Plaintiffs fail to bring to our attention any New Mexico water qual ity standards in effect during the Base operations, and which provided specific, m andatory directives pertaining-13-

to TCE disposal.

The Plaintiffs do refer to a New Mexico public nuis ance statute in effect during the Base's operations, which prohibited the knowing and unlawful introduction of any substance into a public water b ody causing the water to be dangerous for human consumption. N.M. Stat. Ann. § 40A-8-2 (1953) (recodified as N.M. Stat. Ann. § 30-8-2 (1978)). We cannot equ ate this broad public nuisance statute to specific, mandatory water quali ty standards. In addition, the Plaintiffs cite no evidence in the record indicatin g the Air Force “knowingly and unlawfully” introduced TCE into a public water body . The Air Force disposed of TCE-contaminated waste water in isolated unlined di tches or basins. Although the Army Corps of Engineers opine TCE ultimately se eped into the underground aquifer, which constitutes a body of public water u nder the statute, N.M. Stat. Ann. § 30-8-2 (1978), the record does not support the Plaintiffs' contention the Air Force acted “knowingly and unlawfully.” Finall y, and most important, even if state standards had existed, or the nuisance statut e somehow created a standard, existing Air Force Regulation 91-9 expressly provid ed Air Force personnel with discretion to resolve any conflict in favor of Air Force policy.

Returning our attention to Air Force Manual 85-14, § E1.03 states the6Instead, the Manual clearly states “wastes are as varied as industrial and

commercial operations themselves, and therefore tre atment for each type of waste must be considered individually.” AFM 85-14 § E1.0 4. Likewise, § E3.03 specifically provides “[t]here is no standard metho d for treating industrial wastes,” recognizing the differences between industrial sites. Id. § E.3.03.

-14- discharge of toxic wastes must be "stringently controlled." AFM 85-14 § E1.03. Section E1.04d. acknowledges that solvents used in cleaning aircraft pollute potable water. Id. § E.01d. However, these sections do not prescribe specific, mandatory waste water disposal methods or treatmentprocedures. 6 With regard to the aircraft washdown operations at issue, the Manu al states “[t]he only treatment ordinarilyrequired for aircraft wash water wastes is to remo ve free oils and greases.” Id. § 4.04. The treatment and disposal of organic solv ents is not even mentioned.

Lastly, we consider § E2.01a, which prohibits the u se of open carrier ditches to collect industrial wastes involving fire or explosive hazards, or odor nuisance. Id. § E2.01a. The record indicates TCE generally does not involve fire or explosive hazards. The Plaintiffs provided no e vidence TCE involves an odor nuisance. Based on the record, we fail to see how this section in any way specifically directed the disposal of the aircraft waste water at issue.-15-

We therefore find nothing in Air Force Manual 85-14 that usurps Air Force personnel discretion to determine how to dispose of TCE-contaminated waste
water.

Air Force Manual 88-11 The Plaintiffs also rely on Air Force Manual 88-11 (1956) to support their contention the Air Force had a nondiscretionary duty to dispose of its wastewater so as to avoid groundwater contamination. Similar to Manual 85-14, Manual 88- 11 emphasizes principles rather than practices “[b] ecause of the varied nature of industrial waste problems.” The Plaintiffs, howeve r, suggest Manual 88-11 requires the Air Force to do whatever may be necess ary to protect water resources from pollution damage under all circumstances. The Manual imposes no such requirement. Instead, the Manual articulates that the protection of water resources is the objective of industrial waste disp osal. An objective, alone, does not equate to a specific, mandatory directive. In addition, the Plaintiffs have provided no evidence the Air Force did not considerthis objective in its aircraft washdown operations.

Furthermore, in working towards its objective, the Manual recognizes “[t]here is no standard method for treating industr ial wastes” due to the-16-

complexity and diversity of industrial wastes. AFM88-11 § 6-17. Accordingly, the Manual does not prescribe specific, mandatory c onduct. To the extent the Manual identifies pollution control practices, it u ses suggestive, rather than mandatory language. For example, it suggests “[i]n dustrial waste disposal should be discussed with the state water pollution control a gencies.” AFM 88-11, § 6-05 (emphasis added). The Manual further provides, “[i ]nformation should be furnished to the state indicating insofar as practicable the characteristics and qualities of industrial wastes to be handled.” Id. (emphasis added). Most important, the Manual expressly acknowledges “[t]he exigencies of military operations and security may preclude strict adheren ce to all of these recommendations relative to cooperation with the st ate pollution control authority.” Id. § 6-05(c). Manual 88-11 thus left much discretionto those implementing its recommendations.

In summary, not one of the sources cited by the Pla intiffs provided specific, mandatory directives for the Air Force’s disposal o f waste water from the aircraft washdown operations. Therefore, the Air Force’s de cision on how it disposed of its waste water from the washdown operations was di scretionary.

B. Public Policy Considerations-17-

Having concluded the Air Force had discretion regar ding its handling and disposal of wastewater from its aircraft washdown o perations, we proceed to the second prong of the Berkovitz analysis and ask whether that activity was “of the kind that the discretionary function exception was designed to shield.” Berkovitz , 486 U.S. at 536. Only decisions and actions “basedon considerations of public policy” are protected from liability. Id. at 537.

The Plaintiffs contend our evaluation of the Air Fo rce's conduct should focus on groundwater protection policies, not the b roader policies affecting airbase operations. Therefore, the Plaintiffs clai m since the Air Force did nothing to contain TCE used in aircraft washdown operations , its actions were not based on considerations of relevant public policy.

We fully agree with the district court on this issu e. We have “little doubt ... the Air Force’s actions involved policy choices of the most basic kind.” The Base operated under military exigencies during Worl d War II, the Korean Conflict, the Vietnam Conflict, and the Cold War. Operational decisions during this twenty-five year active period undoubtedly wer e subject to defense and security considerations which encompass the heart o f military policy. Indeed, the record makes clear the military recognized it neede d flexibility to weigh its-18-

groundwater protection policies against broader pub lic and military policies; thus it allowed the Air Force to place security and mili tary concerns above any other

concerns. See, e.g. , AFM 88-11, § 6-05c. (stating “[t]he exigencies of military operations and security may preclude strict adheren ce to ... recommendations relative to cooperation with the state pollution co ntrol authority.”

We also recognize “[w]hen established governmental policy, as expressed or implied by statute, regulation, or agency guidel ines, allows a Government agent to exercise discretion, it must be presumed t hat the agent's acts are grounded in policy when exercising that discretion. ” United States v. Gaubert , 499 U.S. 315, 324 (1991). Therefore, to survive a motion to dismiss, the Plaintiffs must have alleged facts which support th e finding the government’s actions were not grounded in policy. Id. at 324-25. We focus “not on the agent's subjective intent in exercising the discretion conf erred by statute or regulation, but on the nature of the actions taken and on wheth er they are susceptible to policy analysis.” Id. at 325. Accordingly, we need not determine what s pecific factors led Air Force personnel to dispose of the T CE-contaminated waste water as it did. The record before us sufficiently demon strates that Base operational decisions, including industrial waste disposal deci sions, were subject to public policy analysis due to the military exigencies at t he time. Plaintiffs fail to-19-

provide proof to the contrary. We therefore conclu de the Air Force’s disposal of TCE-contaminated waste water at Walker Air Force Ba se was the kind of activity the discretionary function is designed to shield. Hence, the discretionary function applies, and we AFFIRM the dismissal of this case.